Re F (Children)
| Jurisdiction | England & Wales |
| Judge | Lady Justice Black,Lord Justice McFarlane,President of the Family division |
| Judgment Date | 07 December 2016 |
| Neutral Citation | [2016] EWCA Civ 1253 |
| Docket Number | Case No: B4/2016/3795 |
| Date | 07 December 2016 |
| Court | Court of Appeal (Civil Division) |
[2016] EWCA Civ 1253
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE FAMILY DIVISION
MR JONATHAN COHEN QC (sitting as a Judge of the High Court)
FD15P00571
Royal Courts of Justice
Strand, London, WC2A 2LL
PRESIDENT OF THE FAMILY DIVISION
Lady Justice Black
and
Lord Justice McFarlane
Case No: B4/2016/3795
Mr Teertha Gupta QC & Ms Mehvish Chaudhry (instructed by Freemans Solicitors) for the Appellant
Mr Richard Harrison QC & Ms Jennifer Palmer (instructed by Dawson Cornwell Solicitors) for the Respondent
Mr Christopher Hames QC (instructed by Goodman Ray Solicitors) for the Children's Guardian
Hearing dates: 8 th November 2016
This appeal arises in the context of proceedings under the 1980 Hague Convention. By now, the proceedings have a regrettably long history to which I will refer further below. The present appeal is against an order made on 14 September 2016 by Mr Jonathan Cohen QC sitting as a Judge of the High Court. By his order, Mr Cohen QC set aside orders which had been made on 2 February 2016, by Mr Nicholas Francis QC (as he then was) sitting as a Judge of the High Court, for the return of three children to Hungary ("the February 2016 return orders").
At the conclusion of the appeal hearing, we informed the parties that the appeal was dismissed for reasons that would be provided in writing in due course. The purpose of this judgment is to set out my reasons for deciding that that was the appropriate result.
In setting aside the February 2016 return orders, Mr Cohen QC gave directions for the rehearing of the father's application for the return of the children. It was anticipated that this would take place on 10 and 11 November 2016 but, unfortunately, a final resolution of the matter on those dates became impossible. A case management hearing was, however, to be held on one of the days and we gave directions in an attempt to ensure that the judge responsible for that hearing would have all the material that might be required at it.
History
What follows is a brief history of central events in this case. More detail can be found from the decision of the Court of Appeal at an earlier stage of the case ( Re F (Children) [2016] EWCA Civ 546) which can be found on www.bailii.org.
The children who are the subject of these proceedings are a girl, L, who is now 14 years old, her sister, F, who is 7, and their brother, G, who is 4. The parents and the children are Hungarian. The parents' marriage broke down and there were proceedings in the Hungarian court. In the summer of 2015, the mother came to this country with the children without the father's consent. The father brought proceedings under the 1980 Hague Convention. These commenced on 23 November 2015, coming on for final hearing on 2 February 2016. Mr Francis QC found that L and F both objected to returning to Hungary but exercised his discretion to return them nonetheless. They were to be returned by 19 February 2016.
The mother appealed against the February 2016 return orders, permission to appeal having been granted on 26 February 2016. L was also permitted to bring an appeal in her own right and was joined in the appeal proceedings as a party. The appeals were heard by the President of the Family Division and Arden LJ on 26 May 2016 and judgments were handed down on 9 June 2016 dismissing them ( Re F (Children) [2016] EWCA Civ 546, see above). The court ordered that the children be returned to Hungary no later than 25 July 2016, the intention being that L would be able first to finish her term at school here.
The children did not return to Hungary by the due date. L had refused to return, locking herself in the bathroom. On 27 July 2016, an application was made by L for an order setting aside the February 2016 return order. This application was refused by Mostyn J on 1 August 2016. He rescheduled the children's return, which was now to take place no later than 25 August 2016. L's application to the Court of Appeal for permission to appeal against Mostyn J's order was refused.
Once again the children did not return to Hungary as ordered. It will be necessary to look in a little detail at the events which occurred at around this time, but in essence L was referred by her general practitioner to a child psychiatrist because of his concerns about her state of mind, concerns which were shared by CAMHS (the child and adolescent mental health services). On the evening of 25 August 2016, which was the last day for compliance with Mostyn J's order, she was under the care of the Accident and Emergency Department at a hospital in this country.
On 26 August 2016, the mother made a further application for the return orders to be set aside. The father sought a collection order by way of enforcement of the return orders, although ultimately he did not proceed with this, considering that he would be able to persuade the children to return without this sanction. The matter came before Newton J who set up a two day hearing for the purposes of determining the cross-applications. This was the hearing that took place in front of Mr Cohen QC and resulted in the order which was our concern in this appeal.
The hearing before Mr Cohen QC
At the outset of the hearing before Mr Cohen QC, L was joined as a party to the proceedings, the father very sensibly having conceded that that was appropriate. Oral evidence was not heard by the judge, who determined the matter on the documentation with the assistance of submissions.
The judge set out in §§10 and 11 of his judgment the approach he took to the law applicable to the application he had to decide, that is the application to set aside the return orders. He said:
"10. It is agreed that I have the power to revoke the order of Mr Francis if I find that there is a significant change of circumstances. The formulation has been agreed that it must be a change that makes it 'reasonably likely' that a different decision might have been made at the original hearing….
11. …I have been referred to the words used by Mostyn J in TF v PJ [2015] 1 FLR 861 where he describes the change required as being 'significant' or 'a material change'. When he delivered judgment in this case on 1 st August 2016 he used the words 'very significant'. In my judgment the test is as set out in TF v PJ, namely a change of circumstances of such significance that the court might have been reasonably likely to come to a different conclusion."
Having directed himself that he was looking to see whether there was the requisite change of circumstances, the judge also considered the question of whether he should look to see if there had been a change of circumstances since Mr Francis QC made his orders in February 2016 or whether he should simply consider whether there had been a change of circumstances since Mostyn J refused the previous application to set aside the return orders in August 2016. He was in no doubt that he had to look at the whole period, going back to the original making of the orders in February 2016 but, he continued,
"obviously giving great weight to not only the original decision to return but also the refusal of Mostyn J to revoke the order, each decision having been upheld by the Court of Appeal. However, I accept the submission that there may be two changes of circumstances, one between February 2016 and 1 st August and the other being between 1 st August and today, which might each individually be insufficient to amount to a significant change but which cumulatively could amount to a significant change."
As the judge analysed it, the five changes which it was said were material to his determination were as follows:
i) The development of L's unwillingness to return to Hungary into a fixed determination that she will not return;
ii) L evidencing her determination by locking herself in the bathroom on 25 July and staying there for four hours so as to frustrate the return to Hungary;
iii) L's increased reluctance thereafter, to the extent of threats to her own life if made to return and the consequent involvement of medical services;
iv) The mother's decision that she could not abandon L in England if L refused to return to Hungary;
v) The intolerable position of the younger children if they had to return on their own, thus being separated from the mother and L.
Of these, the judge took the view that (i) and (ii) were "no more than a modest extension of what was in place in February" and the remaining three were new matters.
The judge accepted readily that F and G would be placed in an intolerable position if L did not have to return and stayed in England with the mother, whilst they had to return to Hungary without them. Accordingly, the focus of the judgment was upon the circumstances pertaining to L and whether there had been such a change as to lead to the setting aside of the return orders.
The judge prefaced his detailed consideration of L's circumstances by referring to the change in the family's life following the separation of the parents, which led to the children living in more straitened circumstances, life becoming, as the judge put it, "increasingly uncomfortable for them in Hungary." In contrast, they were now in a comfortable home in England, enjoying the education here, and with the mother working. All of this had been in evidence before Mr Francis QC. In Mr Cohen's view, the only additional point that emerged before Mostyn J was L's refusal to leave home on 25 July. Since then, however, there had been further difficulties, in particular of a medical nature. He set out quite a lot of the details in his judgment and I have drawn upon that in what follows, adding one or two extra points which emerge from the medical...
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